# In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS

* * * * * * * * * * * * * * * * * * * * * * * * *

JESSIE CONTRERAS

, *

* No. 05

- 626V

Petitioner, * Special Master Christian J. Moran

*

v. * Filed: May 3, 2013

*

SECRETARY OF HEALTH * Award of attorneys’ costs on an interim

AND HUMAN SERVICES, * basis; stipulation regarding interim expert

* costs; award in the amount to which

Respondent. * respondent has not objected.

* * * * * * * * * * * * * * * * * * * * * * * * *

Jeffrey S. Pop

, Beverly Hills, CA

, for petitioner;

Linda S. Renzi

, United States Dep’t of Justice, Washington, D

. C

. , for respondent.

D ECISION AWARDING ATTORNEYS’

EXPERT COSTS ON AN INTERIM BA SIS 1

Mr. Contreras seek s compensation pursuant to the National Childhood Vacci ne Injury

Compensation Program. See 42 U.S.C. § 300aa

— 10 et seq . (2006). He alleges either a hepatitis

B vaccination and/ or a tetanus

- diphtheria vaccination caused him to develop transverse myelitis

and/or Guillain

- Barré syndrome

. Mr. Contreras retained several experts to support this claim.

Whether Mr. Contreras is entitled to compensation has not been determined

. T he United

States Court of Federal Claims vacated and set aside the undersigned’s decision denying

entitlement , filed April 5, 2012, and remanded for proceedings in accordance with the principles

and the instructions set forth in the opinion. Opinion and Order , filed Oct. 26, 2012.

Subseque ntly, the parties attempted to resolve the case through a litigative risk

settlement, but were unsuccessful. A briefing schedule has been set, with respondent’s response

to petitioner’s brief on remand due on May 23, 2013.

1 T he E

- Government Act of 2002, Pub. L. No. 107

- 347, 116 Stat. 2899, 2913 (Dec. 17,

2002), requi res that the Court post this decision on its website. Pursuant to Vaccine Rule 18(b),

the parties have 14 days to file a motion proposing redaction of medical information or other

information described in 42 U.S.C. § 300aa

- 12(d)(4). Any redactions ordere d by the special

master will appear in the doc ument posted on the website.2

Despite not having a final deci sion on entitlement, Mr. Contreras has requested an award

of expert costs on an interim basis

. See Avera v. Sec’y of Health & Human Servs. , 515 F.3d

1343, 1352 (Fed. Cir. 2008). Mr. Contreras did not request any attorneys’ fees.

O n March 28, 2013, the parties filed a joint stipulation of fact regarding interim expert

costs. Respondent noted her position that interim fees and costs are not allowed under the

Vaccine Act, but acknowledged that the undersigned has “previously rejected respondent’s

posit ion with respect to Section 15( e )(1), citing Avera v. HHS , 515 F.3d 1343 (Fed. Cir. 2008 ),

and Shaw v. HHS , 609 F.3d 1372 (Fed. Cir. 2010).” Stipulation at 1 n.1 (citing Dudash v. Sec’y

of Health & Human Servs. , No. 09

- 646V, 2011 WL 1598836 (Fed. Cl. Spec. Mstr. Apr. 7,

2011)). “Given this prior ruling, respondent elects not to raise her st atutory objection at this time

in response to this particular request for interim attorneys’ fees and costs.” Id.

In the stipulation, respondent stated that petitioner informally submitted a draft

application for interim attorneys’ fees and costs. Upo n review, respondent raised certain

objections to petitioner’s application; however, to expedite payment of some, but not all of

petitioner’s costs, the parties have agreed to stipulate to interim costs that are not in dispute. 2

A review of the materials offered in support of the stipulation for interim expert costs

indicates that the stipulated amounts are reasonable. Therefore, Mr. Contreras is awarded the

amount to which respondent does not object. This amount includes the following items:

Dr. Steinman $54,862.50

Dr. Kyazze $400.00

Dr. Poser $2,700.00

Dr. Garrett $1,300.00

Dr. Wagner $4,250.00

Liz Holakiewicz $18,600.00

Total Expert Costs Not in Dispute $82,112.50

Therefore, the Court awards a check made payable to petitioner and petitioner’s attorney,

Jeffrey S. Pop, in the amount of $ 82,112.50 for interim attorneys’ costs available under 42

U.S.C. § 300aa

- 15(e)(1).

2 According to the parties, the “stipulation represents all costs incurred by these experts to

date. Petitioner reserves the right to pursue costs for additional experts not includ ed in this

stipulation.” Stipulation at 2 n.2.3

The Clerk shall enter judgment accordingly. 3

IT IS SO ORDERED.

s/ Christian J. Moran

Christian J. Moran

Special Master

3 Pursuant to Vaccine Rule 11(a), the parties can expedite entry of judgment by each

party filing a notice renouncing the right to seek review by a United States Court of Federal

Claims judge.